Thursday, July 12, 2007

Is Legal Reasoning Experimental Science or Reflective Equilibrium?


Mike Paulsen's last post about his friend Cal Tillisch raises some very profound issues about jurisprudence. Although Mike's goal was to inveigh against "result-oriented" legal interpretation, there's something more at stake here. One way to approach it is to ask whether the practice of legal argument-- including the development of theories and applications of legal interpretation-- is best analogized to experimental science or to other practices characteristic of moral reasoning.

There are good reasons to think the latter rather than the former. If the construction and application of legal theories is similar in important ways to moral reasoning, then we might expect that it would make abundant use of what John Rawls called "reflective equilibrium." Reflective equilibrium is a kind of coherentist argument, whereby we try to move back and forth between considered moral judgments about concrete questions and more abstract moral principles that are used to justify them. That is to say, reflective equilibrium allows us to do what in Cal's science class would have been considered inappropriate (but that Cal did anyway). We start by drawing the dots and then we reason from them to theories that in turn explain the dots. (Some might call it a form of abduction, or even affirming the consequent.) Things don't always fit together perfectly, and so we end up adjusting our principles in terms of our considered judgments, and our considered judgments in light of our principles.

In fact, Mike's post suggested that a certain type of reflective equilibrium was at play even in his science class. Some of the experimental results he and Cal got were "wrong" because of experimental error. Implicit in the very claim that they were "wrong" is that recording and evaluating data is theory laden; if the data don't match the theory the experiment is designed to show, that may not be because the theory is wrong but because the method of producing data may be flawed.

What does reflective equilibrium have to do with result-oriented jurisprudence? Simply this. In devising theories of constitutional interpretation, we do not simply reason from general principles of interpretation downward to cases. Rather, we continually test our intuitions about how to interpret the Constitution against the background of situations we believe to be correct: that is to say, to our considered judgments about what the Constitution means in particular cases. In law those considered judgments might be canonical cases or hypotheticals.

Most law professors think that whatever your theory of interpretation, it has to be consistent with Brown v. Board of Education. Hence living constitutionalists often charge that originalists can't justify Brown, so there is something wrong with originalism. Michael McConnell argued that there was no inconsistency, and people then criticized McConnell's argument. The point, however, is that what both McConnell and his critics were doing was drawing the curve and doing the experiment later, in Cal Tillish style. This particular data point had to be right, no matter what the experiment said, so the curve is drawn to make it come out right, and behold Brown is justified!

However, almost nobody thinks that this form of Cal Tillish style argument is bad in constitutional law. In fact, they assume that this is how you would make arguments in constitutional theory. A theory of interpretation that can't explain the most important features of settled practice is suspicious for that very reason. That is because an important goal of interpretative theory is not to produce results deductively but to explain and justify the larger principles behind settled practice. That is, constitutional theory combines aspects of explanation and legitimation.

So perhaps we can see Michael's criticism in a different light. Michael probably would have little problem with adjusting one's interpretative theory so that it would justify Brown, Gibbons v. Ogden, McCulloch v. Maryland and (perhaps) New York Times v. Sullivan. But Roe v. Wade is not a canonical case of that sort-- it is the most controversial case of our generation. A constitutional theory of interpretation designed to justify Roe will convince nobody other than those who are already convinced. That is because many people think Roe was wrongly decided. They want arguments from principles they already agree with that persuasively produce the result in Roe in ways they cannot easily rebut.

But-- and here is my point-- it is unlikely that constitutional argument will produce such knock-down arguments for any seriously contested case in American political life. It certainly did not do so for Brown during the first decade of the case, when Brown was seriously contested, and when no less an eminence than Herbert Wechsler rose to doubt that there was any "neutral principle" that could require the result in that case. What made Brown canonical-- what made it the case that all theories had to explain-- I am afraid, was not the development of the "killer argument" for Brown, the development of the missing neutral principle that Wechsler was looking for, or the manufacturing of the interpretive theory out of which Brown ineluctably fell. Rather, I regret to report that the reason why Brown is canonical today, why it stopped being controversial, is because of the Civil Rights Revolution, the 1964 election, the 1964 Civil Rights Act and the 1965 Voting Rights Act. After that, most people who opposed Brown just gave up. They stopped claiming that Brown was wrong. Instead they began arguing about who was more faithful to Brown. (We have seen an example of this in the two sides in the Parents Involved decision last month.) As opponents started to give up, Brown began to look more and more reasonable to everyone. It began to look more and more like an easy case, its principles began to appear to be neutral principles. That is how constitutional controversies get settled. The former opponents give up and begin to cite the results for their own ends.

All of this is reason to believe that the project of constitutional argument and constitutional interpretation is not really like experimental science, but quite a different animal. And therefore making fun of constitutional argument because it fails to conform to the principles of experimental science is like making fun of baseball because it fails to conform to the rules of golf. (But both have sticks and balls, you might insist. Yes, but they are used in different ways and for different purposes.).

And yet, we don't want constitutional theory to be nothing more than result-oriented theory construction. Even though we know that people with different political views will often reason their way to opposed conclusions, we want constitutional theory and constitutional argument to do more than apologize for "our side's" views. We want people who disagree with us about important substantive questions to reason with us and talk to us from common premises. We want them to create their theories out of the generally accepted cases, materials and methods in the current legal culture.

And that is what I've tried to do in my own work. I start with the premises of original meaning originalism and the history of the Fourteenth Amendment and try to show why guarantees of sex equality and an antisubordination theory of equality follow from those premises. Because I believe that abortion rights flow out of an antisubordination approach to sex equality, it follows that the abortion right is consistent with original meaning originalism. Michael might disagree at different points in the argument. He might disagree with my account of original meaning, or he might disagree with my account of the history of the 14th amendment. More likely he might accept many of the former arguments but disagree (strongly) that a commitment to sex equality and the antisubordination principle leads to the abortion right. He might insist that the constitutional guarantee of sex equality is perfectly consistent with the criminalization of abortion. But if he and I disagree on that point, that is not because one of us is result-oriented and the other of us is not. It is because the pull of different considered judgments pulls us in different directions in fitting the different parts of constitutional argument together. That does not mean that constitutional argument is bankrupt. It does mean that we should not expect it to conclusively resolve all disputes about law, particularly the most politically heated ones. It means above all that we should not expect from constitutional argument what we expect from experimental science.


This is probably -- and excuse the hyperbole because I've had a number of drinks tonight -- one of the *best* Balkinization posts I've read. This is why I read this site religiously.

Now that I'm done cheerleading.

The question to ask, to my mind, is what can be done to to convince Prof Paulsen that abortion, even though he considers it tantamount to murder, worthy of constitutinal status.

Probably nothing. To read his paper in Notre Dame LR (The Worst Const Decision of All Time; Casey is the answer to the question the title implicitly asks). There, he argues that SCOTUS has allowed mass genocide to occur (and the Court knew the consequences of its decision which makes it that much more abhorrent).

However, this argument simply does not deal in reality (and, apropos of a larger issue, conservative constitutiuonal theory does not in general, see original expected application originalisim). It is clear that if Roe were overturned or abortion outlawed outright women would still abort their pregnancies in largely the same number as do today (but, for low-income women, in decidedly less safe conditions). Outlawing simply sends it underground.

AGI reports that 43% of women have had at least one abortion. 43%! To compare, as Prof Paulsen does, these women to Pol Pot and Stalin is the apotheosis of the overheated rhetoric that the Roe debate creates. 43% of American women are decidedly not like brutal dictators, but instead women who want to be able to live their lives on their own terms.

Simply put, the fetal life factor CANNOT be a legitimate gov't interest in the abortion debate because it ignores the empirical evidence. No court should take this argument seriously (of course this is different in the post-viability stage of pregnancy).

Which, longwindedly, brings me to my larger point. Legalized abortion, on balance, has been positive for women. The empirical evidence -- no matter what Kennedy "assumes" (and the evidence severely undercuts his "unexceptionable" proposition that abortion harms women) -- shows that women are better able to enjoy an equal opportunity to negotiate today's societal conditions because of choice.

While I doubt the empirical evidence will convince true-believers like Paulsen, it will convince moderates who are likely to support those abortions that are not "birth control" (although it is worth noting that women who present for mulitple abortions are more likely to have been the victims of physical and sexual abuse).

To close my rambling, while I fully agree with Prof Balkin that const argument will never approach scientific certainty and is more the product of social movements, what might move the populous is having solid EMPIRICAL arguments rather than tired moral/philosophical arguments that are not apt to convince anyone who's not already sympathetic to that line of reasoning.

"But if he and I disagree on that point, that is not because one of us is result-oriented and the other of us is not. It is because the pull of different considered judgments pulls us in different directions in fitting the different parts of constitutional argument together."

When you say "results oriented," do you mean results with respect to the case or results with respect to the law? (The case is how I want it to be vs. The law is how I want it to be). And to what extent is there any meaningful distinction, since every case is just a datapoint in the law. Along these lines, would you stop short of Justice Breyer's "Active Liberty" imperative, as it too overtly concedes that there are factually desirable moral results to which interpretation of the law should take its aim?

The big question is this: what does Cal Tillisch think of all this? Let's hear from the trenches---from Cal himself.

This is probably -- and excuse the hyperbole because I've had a number of drinks tonight -- one of the *best* Balkinization posts I've read. This is why I read this site religiously.

Ditto this. Well, except for the drinks. I'm stone cold sober and the post is still terrific.

Sorry, Jack, but you have made a complete muddle of this one.

Cal Tillisch reasoning, in its original high school science lab context, consists of starting an experiment by turning the page in the textbook to find out what the conclusion to be drawn (e.g., Boyle's Law) from the experimental measurements is; plotting out a perfect curve derived from the correct answer; actually doing the experiment (in the less devious version of Tillischism), making the measurements, and recording the data; and finally explaining away any datapoints that deviate from the correct result by invoking a vague notion of experimental error.

Of course, such typical high school "science experiments" are fundamentally and lamentably different from what actual scientists do. In the actual practice of science there is no way to first turn the page and find out what the correct answer is. Instead, scientists have to start from dubious guesses as to what the correct answer is. Those guesses are arrived at by combining deduction from prior, presumed correct theories that have some connection to the current area of inquiry with induction or pattern recognition through examining from various perspectives previously collected data sets. From that starting guess derived from pairing deduction with induction, experiments are designed that will allow the scientists to collect new data that have a strong possibility of proving the dubious guess to be false. Both the old data and the newly collected data are rigorously analyzed to account for error using means that are generally beyond the knowledge and capability of most high school students. Vague, hand-waving invocation of "experimental error" is not allowed, and failure of the theory to generate answers that fall within the rigorously analyzed error in the data is a serious matter.

Those are the two basic intellectual models to which you should be comparing constitutional interpretation: Cal Tillisch, high school "scientific" inquiry, and real scientific inquiry.

When you say, "reflective equilibrium allows us to do what in Cal's science class would have been considered inappropriate (but that Cal did anyway) ... start by drawing the dots and then ... reason from them to theories that in turn explain the dots," you fundamentally misrepresent Cal's approach -- in fact, you get it almost exactly backwards. Cal starts with the theory obtained by turning the page, not by drawing the dots and then reasoning from the dots to the theory. Reasoning from the dots to the theory is far more akin to one of the two basic elements that motivate legitimate scientists' formulations of their dubious guesses, and very unlikely to engender the reproach of a high school science teacher.

In so far as you want to equate decided legal cases with the scientists' datapoints, reasoning from the dots to the theory is also broadly similar to the practice of legal pedagogy and constitutional interpretation that starts from accepted, canonical cases deemed to be correctly decided, and expects some sense of a broader theory of correct legal decision making to arise from examining from various perspectives those previously decided cases. This is the equivalent of the scientist's inductively arriving at dubious guesses from looking for patterns in previously collected data. In both cases, the points are held to be correct, and they dominate over the theoretical guesses which must be tailored to conform to the points. This is not Cal Tillisch reasoning.

Neither should McConnell's modifying his dubious originalism guess to fit the dominant Brown datapoint be considered Cal Tillisch reasoning. McConnell is assuming the correctness of the Brown decision and modifying his theory to fit the data; he is not "drawing the curve and doing the experiment later, in Cal Tillisch style." Were he engaging in Cal Tillisch reasoning, he would assume the correctness of the answer from the originalist textbook and insist that Brown's deviation from that a priori notion of originalism is the result of the Brown decision being in error. Instead, McConnell reasons more like a real scientist in arguing that the Brown datapoint shows that the prior textbook theory of originalism is in error, and thus he proceeds to formulate a modified dubious guess that is tailored to fit Brown. Now you may still disagree with McConnell's modified guess, but that's not cause to mislabel his method as Cal Tillisch reasoning.

Now, aside from your fundamental misunderstanding of what is Cal Tillisch reasoning, and your consequent misrepresentation of what is and is not an example of Cal Tillisch reasoning in the context of constitutional interpretation, you do raise some interesting issues with regard to reflective equilibrium and "adjusting our principles in terms of our considered judgments, and our considered judgments in light of our principles." However, you are badly mistaken in thinking that this process of reflective adjusting is not found in experimental science. Your "experimental science or reflective equilibrium" framing is a false dichotomy.

Cal Tillisch, high school "scientific inquiry" is a form of fundamentalism that starts from unassailable, fundamental, foundational, textbook truths and then suppresses as error any deviation from the "correct" answers deduced from that foundation. Real scientific inquiry does not work that way. For real scientists, both their dubious theoretical guesses and their data are lacking in certainty. Even when experimental error has been controlled and accounted for as rigorously as possible, it is very frequently the case that a scientist is confronted with data that may either confirm or deny that scientist's current dubious guess.

In such cases, the scientist embarks on a process of adjusting theoretical principles in terms of his considered data, and his considered data in light of his theoretical principles -- at least as far as the datapoints can be moved while not straying outside the determined error bounds. Additionally, there is a definite hierarchy of both data and theory. Clusters of datapoints from multiple experiments and multiple, independent researchers are far less suspect and far less mobile than are isolated new datapoints. Similarly, well established theories that fit all of the prior data and that are mutually supported and entwined with other theories are far less suspect and far less amenable to modification than is the scientist's latest, ground breaking, dubious guess. Of course and with the passage of time, a previously isolated datapoint can be joined by new, independently arrived at datapoints
to form a mutually confirming cluster. Likewise, a once-ground-breaking, dubious theory can in time be supported by additional data and become entwined in the mutual support of other theories, new and old.

Resume the substitution of judicial decisions for datapoints, theories of legal interpretation for scientific theories, designing and trying of test cases for designing and performing of experiments, and it should be readily apparent that, with the exception of a formalized, rigorous, and objective notion of experimental error analysis, the processes of reflective equilibrium and settling of constitutional controversies over time are really not so different from the practice and processes of experimental science as you presume, Jack.

It strikes me that the difference being talked about here has to do with the fact that an experimental science adheres to, proceeds by, and believes in the hypothetico-deductive method (HDM), while constiruional law proceeds by argument (from remembered cases and principle.) The uniquely distinctive feature of the HDM is that it requires you to propose what you think about how some (tiny) aspect of the world works in such a way that you can conceive of and perform an experiment that will (if you've posed your idea and done the experiment well) indicate whether your idea was wrong.

The "equilibration" that JB refers to is probably a general strategy for problem-solving which empirical scientists use (as much as constitutional scholars) when thinking about their hypotheses. The distinguishing characteristic is the disposition to pose an idea in such a way that you or anyone else can determine whether you are wrong by reference to an experiment THAT DOES NOT CARE WHETHER YOU ARE WRONG AND, IN PARTICULAR, DOESN'T KNOW ABOUT YOUR ARGUMENT, PREVIOUS CASES, PRINCIPLES, WHAT SHOULD BE.

Undoubtedly there are differences and distinctions between scientific and legal reasoning. I am not convinced that we have yet properly or fully isolated the key distinguishing characteristic or characteristics. My principal point, though, was that, contra Balkin, reflective equilibrium does not distinguish legal or moral reasoning from scientific inquiry. Rather, it is a characteristic common to all of these.

Despite "analogy," the theoretical and experimental approach of the natural sciences has no "correspondence" in cases of law.

In law, one infers (or applies) from particular cases to a general principle, and that is inductive, not deductive, and ergo, practical, not theoretical.

The whole notion of law being analogous to experimental science is incoherent if not presumptively arrogant.

Like all practical matters, including ethics and politics and economics, one takes a "universal" premise and a "particular" premise, and obtains a "particular" conclusion. To suggest otherwise is preposterous.

Prof. Balkin,

You make a good argument that the culture en mass does change the interpretation and therefore the meaning of law, but is this proper? Is this how it is supposed to work?

Calvin TerBeek also makes a good argument, primarily on moral grounds I think, but is the judiciary's primary role to attain moral justice or to reliably and consistently apply law? I am an amateur; so perhaps it is both, and neither one more than the other.

I'm not expecting constitutional argument to rise to the level of objectivity of experimental science, particularly considering that morality itself is less clearly empirical than most sciences, but such objectivity and consistency seem to be worthwhile goals.

Perhaps a better moral argument is that legislatures are somewhat broken, and moral justice must be obtained from somewhere.


What practical reason is there for inferring a general principle from particular cases if that general principle is not to subsequently be used to make deductions?

Legal reasoning is not unique in inferring a general principle from particular cases. Scientific inquiry also infers general principles from particular data. Science is not purely deductive, but proceeds from the pairing of both induction and deduction, as does the law. Failure to recognize the parallels between legal and scientific reasoning is incoherent if not presumptively arrogant.

Furthermore, science inquiry is an eminently practical matter. To suggest otherwise is preposterous.

Legal reasoning is not unique in inferring a general principle from particular cases. Scientific inquiry also infers general principles from particular data.

Two important differences (at least) occur to me:

1. Law provides FAR fewer data point constraints than does science. Sure, everyone gives lip service to Brown as a data point (while conservatives diligently undermine its essential message, thereby calling into question whether it actually provides a data point at all). But how many other cases do so? Very few. That makes legal theories subject to far less constraint, and far more a process of evaluative judgment, than science.

2. Even if we could agree on "data points" in the law, the lag time between the issuance of an opinion and its general acceptance within even the legal population makes it impossible to use those "data points" in anything like a meaningful time frame.

Full disclosure: I've been trained as both a lawyer and a philosopher, but I have no stake in either game because these are both historical facts about me.

Cal's classroom experiment does not show how science works. It is a training exercise in how to set up, conduct, and draw inferences from an experiment, and in how to know experimental error when you see it. It is to real science what training wheels are to the Tour de France.

The relationship of observation to theory is a tough nut to crack, and the meat of the nut is sobering. Let me begin with some background philosophical effort that ties to John Rawls and thence to constitutional theory.

In "Two Dogmas of Empiricism" and other papers leading up to his book Word and Object, the Harvard philosopher W. V. Quine broke down the observation/theory distinction with a view of language. He spoke of degrees of observationality but rejected as myth the idea that some propositions are true solely by virtue of what they mean while others are true or false based on experience. This is hard to appreciate, and many practicing philosophers still don't, but it's essential to understanding Rawls.

A related casualty in Quine – the second dogma to fall – is the notion that each proposition can be assigned its own empirical content. As Quine put it, our theory of the world faces the tribunal of experience as a whole and is all more or less revisable, and we have discretion as to where we revise. To the extent we feel otherwise it is because we are much more reluctant to ditch some propositions than others and because we experience an on-the-spot press to revise based on discrete perceptions. But understand the real workings of language and you'll see the classic philosophical inference is illusory. It's not just that facts are theory-laden; theories are also fact-laden.

There is a corollary that (if obscurely) combines these two points: There will always be "empirical slack" between our total experience and our theory. We could always have come to a different view of the world given any body of experience, even taken out to a notional infinity, provided we'd made adjustments somewhere or other along the way.

Quine's move was followed through on by others in his wake. They took it to mean the end of the a priori and hence of the philosophical project that began in 17th century Europe. The recently departed Richard Rorty was in this school. He set out to reframe the project instead of just saying everything is mush, though he saw fit to switch departments to do so.

A different route to a similar result is in Ludwig Wittgenstein's later work, culminating in the Philosophical Investigations. A confessional book made up of paragraphs strung together, its intent, and for some its effect, was to put an end to the impulse to do metaphysical philosophy, though not for reasons "practical people" would adduce, not anti-intellectually. He instead sought to put intellect right with the world. As one who earlier tried to account for how language engaged reality in the span of a book, Wittgenstein saw fit to recant. But it was not just about him.

On Wittgenstein's view, we do philosophy. It's in our nature. Perhaps we always will, and it's not a simple mistake that we do. Yet it is a losing game, and nonsense. Language normally works just fine - it doesn't need the philosopher to work - but there is no explaining why, no theory in the offing as to how it works. We can come to the verge of more or less synoptic insights on the subject -- and different things work for different types (and for some people nothing seems to work). But a standpoint from which to theorize is altogether lacking. It's an insult to theory to suppose otherwise.

One of Wittgenstein's synoptic paragraphs is #242, which opens thus:

If language is to be a means of communication there must be agreement not only in definitions but also (queer as this may sound) in judgments.

This prefigures Quine's view that no proposition holds good entirely on the strength of its meaning. Definitions are fine. They are just not what the metaphysician says they are.

Wittgenstein is however no post-modern relativist. He goes on to say in practically the same breath that this may seem to abolish logic but does not do so (nor did it for Quine). And he concludes with an interesting thought about experimental results:

It is one thing to obtain and state results of measurement. But what we call "measuring" is partly determined by a certain constancy in results of measurement.

Here we see the point Quine would later make at the observational level. It is however only a small point because Wittgenstein's general picture – not a theory, mind you – is that usable language depends on shared forms of life. Again, there is no fleshing this metaphor or any of its sizable components out to produce a theory. Not by way of a theory of meaning and not otherwise, though people may forever try in Sisyphean fashion.

Replace "determined" in the last quote with "constituted" and hear "constitution" in that word and you get another handle on the boundaries of Rawlsian method, limits he came to embrace.

What's interesting about that embrace is that Rawls came to it, at least expressly, in midstream. Reflective equilibrium always involved a nod to Quine's holism, as the idea of moving back and forth contains the idea that there is no a priori firmament to speak from. But in the 1980s Rawls published "Justice as Fairness: Political not Metaphysical." He said there that his 1971 masterpiece, Theory of Justice, did not hit rock bottom. He deemed it a very good comprehensive moral doctrine but acknowledged he could not refute others on the same level (such as utilitarianism and liberal religion). The retraction - or was it more of a clarification? - sums up in his view known as the reasonableness of pluralism, an altogether American idea that (though Rawls never said so) reflects Madison in Federalist Papers #10.: there can be no consensus (read: as to matters metaphysical) without oppression.

In so doing, Rawls undersored an implicit consequence of his approach earlier missed (made plain to him by his colleague Burton Dreben, gray eminence to both Quine and Rawls and steeped in Wittgenstein): We cannot say with a straight face that we've found inviolable principles out of which to constitute a constitution. Not without oppression, and that would mean the end of constitutional democracy. In the scientific case, it would be like holding every scientist hostage in Cal's class, dictating results in the form of a plotted curve (or otherwise) and punishing them for not hitting the marks. The cases are not so fundamentally different. Reasonable pluralism is just another kind of slack.

What, then, keeps a liberal society from descending into post-modernist relativism? Rawls said it hinges on an overlapping consensus across comprehensive moral doctrines, one that shows up in agreement on cases. This idea answers to Wittgenstein's point in #242.

But nothing articulable guarantees such agreement, anymore than it does in Wittgenstein. And while we can try to persuade, as Rawls continued to do, we do so by way of appeal, not philosophical argument, by cajoling and prodding, doing our best to stop short of smackdown. We do this best with the likeminded. It gets harder across cultural divides. That's our liberal lot. Deal with it, Rawls said.

Rawls's picture can be said to break down under current conditions, but that's not his fault. It's a result he accounted for, even foresaw on his worst days. For he was aware, and stated, that one cannot police constitutional boundaries with a priori principles or even control the outcome of reflective equilibrium under all circumstances. In this vein he wrote on the rising threat of fundamentalism early on, urging reasonable religion, trying to get people to act like bipeds, rise above the weeds, and see what our political culture really depends on.

Chestnut case law is thus at most good polemics, no better and no worse in principle than other proffered touchstones. A complementary tack in the spirit of Rawls would be to flesh out the deepest traits of the right's project now that we have seen it carried in practice. Fueled by secret memos retracted as soon as they hit daylight, by Straussian fantasies about remaking our society and the rest of the world, by wedge issue politics (and case law) coupled with dastardly electoral schemes, and by eliminating the difference between politics and principle, it is profoundly antidemocratic, oppressive and (I would venture to say on the heels of all of the above and more) illegal. The public can see this. It is beginning to, I think, though it may not do so in time.

But to pin it all on waxing ecstatic or unloading on Roe as a standalone exercise even with some reflective back-and-forth? Not enough, and maybe even unhelpful insofar as it suggests a real hold on what things turn on. And I'd say the same about Brown. Does anyone doubt, given other views of his, that Scalia has woken up more than once – with or without a sweat – from a dream that Brown was never written? He denounces Roberts and Alito for limiting precedents he thinks they should overrule. Given this, where are the linchpins in the envisioned theoretical back-and-forth? And where can we count on coming to rest given the depth of differences?

Or take the Suspension Clause. We thought it inviolable until our Attorney General told the Senate Judiciary Committee there is no right of habeas corpus in the Constitution. The Senators' smackdown did only so much.

Let me come full circle by returning to science. Consider how our political culture draws practical inferences from science. Its upshot is now up for grabs, subject to politically-driven revision. Start with how the Grand Canyon was really formed. Move on to how old ice core samples with varying CO2 levels really are. Turn next to what accounts for affectional preferences and what abstinence-only achieves. Lysenkoism rules some powerful roosts.

Crazy! we all want to say. But now try and prove the point and make it stick, really stick. There's a chance for wide-ranging success, in the right cultural circles, but slack bites you just when you think you've pinned the last of it down. "What will they think of next?" we ask, and then they show us. What's needed - a restoration of one important sector of a form of life - is not the stuff of theory. We have to drive certain ideas back into dark corners and contain them, kill off Lysenko with something akin to Lysol.

We're certainly on the wrong side of PI # 242 and Federalist #10, nastily interwoven realities of inquiry that are being used to bring on an atrocious form of life.

Something in our bones says the effort will fail of its own accord. That does not guarantee it will, and it would be tragic to assume it will as a matter of cold logic. The effort in question commands a durable and well-funded following, and already has done long-lasting damage to ideals we hold dear and should.

I would thus stress parallels between science and constitutional theory but urge that we not kid ourselves and do our best to dispel illusions about each and about what makes our words work and our conclusions stick. The needed work can't be quixotic because more could not be at stake. To see the lot of reason for what it is the predicate for seeing what we really and truly have to do to get back to normal. It's not a philosophical project, though it takes a certain clearheadedness that some philosophers have tried to foster.

Jack Balkin’s post is very thoughtful. One should be careful about stereotyping what one kind of reasoning is as opposed to another. For instance, the idea of a hypothetico-deductive method is one philosophical picture – a very controversial one – of how science works. Mathematics is deductive. Science, and ethics and law are inductive. The sciences work according to inference to the best explanation – that is competing possible explanations or hypotheses are rendered increasingly sophisticated through experiment and debate. Novel theories win out when they explain what the prevailing theory explains and central anomalies for that theory. Described in this way, moral reasoning, for instance, what Rawls calls reflective equilibrium looks a lot like science. Consider the question: whether we know now that however diverse a good life might be for individuals in different cultures, slavery is not part of it. Aristotle argued in the first book of his Politics that although “nature often makes mistakes,” there is a distinction roughly of minds and bodies which justifies natural slavery. He thought Greeks wrongly enslaved other Greeks, but allows that barbarians might be natural slaves. Yet he notes in the second book that Carthage, a barbarian city, is one of the three best existing cities. He is moving back and forth between a general view – nature must have made the relevant distinction of minds and bodies – why do all the local societies have slavery, otherwise? – and many many counterexamples. His was not an inevitable view in ancient Greece, by the way: Aristotle was arguing with Socrates who contended that souls have knowledge, can recollect it and are equal from eternity (see the proof by a slave under questioning from Socrates of a leading theorem of Euclidean geometry in Meno). With Christianity and the rise of revolutionary egalitarianism in the Puritan and the French Revolutions, Montesquieu, Rousseau and Hegel (“slavery is an outrage on the very conception of man ‘) argue, with evidence, the contrary view to Aristotle. But it took many centuries of abolitionism and fighting for the true view to win out. It won out, however, because there is no distinction among humans justifying practices of slavery (and other forms of legalized distinctions among humans). (See Alan Gilbert, Democratic Individuality, Cambridge, 1990 for the worked out arguments).

Perhaps what Balkin describes about Brown v. Board is typical of many major changes (one should add the civil rights movement from below and the heroism of many who gave their lives so that the later laws could be passed) and applies to abortion. Nonetheless, thinking about the abortion issue should not rest on broad arguments about what induction is. Abortion is unusually complicated morally and hence legally speaking compared to other issues because it involves a genuine and quite rare conflict of moral goods. We all agree about infanticide. When a foetus becomes a child, however, is controversial (and not easy to settle). The individuality or autonomy of the mother is also a great moral issue (much abortion language, including in the latest decision by the five “conservative” gentlemen on the Court, is vicious patriarchialism). Beyond a certain point, this conflict is simply a hard case and cannot be settled morally but will have to be settled conventionally.

We have reached a point historically where many women have chosen to have abortions and that the proposals to end Roe v. Wade – and the current “right to life” movement - cause many deaths in the name of morals (and are thus amazingly immoral). Decent proposals probably have to do with making a society which cares for children (not this one in which many children once they leave the womb are not guaranteed healthcare). In guaranteeing more honorable treatment for mothers and children, that society would probably result in a reduction of abortions. An OECD report in 2000 indicated that in Scandinavia there were the highest rates of single parent households (47%) and the lowest rate of child poverty (3%) in the world. Perhaps we need to move more in a Scandinavian direction. Few who argue so strenuously against abortion (I have yet to meet the woman who was not literally ripped apart to have an abortion) seem to look at actual living children. Perhaps that contradiction is where better inductions – and stronger countermovements - might help…

Alan Gilbert

A couple of thoughts triggered by oo's excellent post.

Legal theories will always be underdetermined by "data points" (i.e., consensus decisions). That's not just for the reasons I mentioned above or that oo noted, but because even the most secure case can be undermined or overruled. That never happens in science; once established, facts remain facts. For practical purposes, gravity doesn't cease to be gravity.*

The other point is just an observation of the extent to which the modern extreme right has adopted the tools of philosophical skepticism and used them to corrode the common operating assumptions on which we base our society. The corrosive effect of these doctrines -- not just with respect to issues like creationism, but with the fundamentally corrupt reliance on power as determinative which you see expressed in posts here -- eats away like acid at our social fabric.

*Yes, I'm aware of recent data suggesting gravity has changed over time. 4 billion years is not a relevant counter-example.


Thanks for the kind word.

As to facts staying put, granted, it's hard to imagine discovering that carbon is not an element, but science does call back what it's long regarded as fixed truth. Consider what special relativity did to the "facts" of (1) absolute space filled with ether, through which light and objects of determinate length travel at varying but determinate speeds, and (2) absolute time, in which widely separated events can be deemed simultaneous, or not, without qualification. Einstein called these "facts" back, injecting reference frames, relativizing length and simultaneity to them, and declaring "c" a constant. His 1905 paper began with observations about how we measure distance and time, and moved from there to account for data Newton never had to confront.

But let me hasten to add something. What I wrote was bound to fuel misapprehensions of the sort you had about the philosophers I described, how they - or I for that matter – view language, science and constitutional law. The sketches I gave were just crude summaries of lifelong expositions whose tenor is hard to pry from the page. The problem is not that the views don't reduce to sound bites. It's bound up with the idea that they are not theories.

Philosophical theories are, for all these thinkers, nonsense. This is because they all reject the classic philosophical machinery of language-transcendent concepts, meanings, properties or whatnot (memes being the latest entry into this pantheon) -- things that are at once "out there" and "in the head" for the philosopher to divine and report back on.

Once you set this machinery aside and look at language as used, as part of our natural history with no metaphysical overlay, things do look different to a philosopher. Philosophy loses its grip and its erstwhile rationale. However the world looks the same. We just stop talking about it in certain ways.

For this reason, none of these thinkers – nor I – see philosophy as directly changing anything we do or say except as philosophers. Wittgenstein hammers this home repeatedly. Quine's positive output is cast as extremely broad science (and, to correct a misimpression, he is quite focused on observation, spending a great deal of effort on what it rests on and why it's so important for smooth communication in and out of science). Rawls's work is expressly limited to the world's liberal democracies; he expected his points to ring hollow outside such societies. (Though he did write one book projecting a limited range of ideas globally, he was no Wilsonian, to the chagrin of many who call themselves Rawlsians.)

It's easy to spin the demise of classical philosophy as a tragedy, as though we had lost something real that was doing real work. But the intended end-state in all these cases is liberation from a temptation that philosophers take more seriously than most and that truly critical philosophers try to exorcise. Ordinary folks will ask, "Why bother?" But there are reasons to, indirect benefits. To give an example, imagine how ludicrous originalism looks and how many ways there are to run circles around it from the perspective I've sketched, not technically but in commonsense terms some of which would provide material for Jon Stewart.

As for data points, the question is, Are chestnuts from case law the ideal (or sole) focus, or is it better to supplement case discussions with talk about abstracter matters? The Federalist Society's vision of what our constitution should be, and the fit of its ideas within the right's wider agenda (if it's coherent enough to call an agenda), presents a host of such data points.

One of the first lessons of law school is the principle of legality: law is a public thing in a republic (which itself means "public thing"). It was with that principle in mind that I alluded to (1) the secret memos that can't survive the light of day, which violate it in spades. To this add (2) revisions to obscure mining law definitions in the Federal Register (where the press never looks) to permit pollution by strip-miners; (3) deceptively labeled legislation ("Healthy Forests" e.g.); (4) the provision slipped into the amended Patriot Act (itself unread by Congress when originally passed, except by Russ Feingold, who accordingly voted against it!) eliminating the need for Senate confirmation of replacement US attorneys; and (5) the Energy Task Force membership list.

There's something not just fishy but kind of lawless in such goings-on. An articulation of what underpins a constitutional democracy would help us to pin down why.

Two more cases in point: (1) In 2004 Kerry could have made a JFK-type speech about not kowtowing to the Pope, giving expression to what Rawls said is obnoxious about the political use of fundamentalism; (2) We need to get clear on how and why the findings of science are needed to produce actionable intelligence – factual fodder for an overlapping consensus – in a constitutional democracy. What do we do with those who believe ice core samples are at most 6,000 years old and that, at any rate, the end-times are nigh so why care? And what about industries that fund skepticism for their own ends?

These cases are all like the fast-moving objects Einstein pondered. He, to make it clear, did not invent the principle of relativity; he resuscitated it. And he launched his theory by assuming the homely role of a man with watch and ruler before showing how to derive Lorentz's transformations. Such points of parity are, sadly, underappreciated by our politicians and public intellectuals. They reach too deep into our discourse to get an airing. But they are not hard to see. To the contrary, we read about them with dropped jaws every day. There are no easy answers to the questions they pose, but the questions don't even take shape without a way to articulate what's gone wrong.

The potential to frame issues of this sort is what I see as Rawls's latent legacy.

As to facts staying put, granted, it's hard to imagine discovering that carbon is not an element, but science does call back what it's long regarded as fixed truth. Consider what special relativity did to the "facts" of (1) absolute space filled with ether, through which light and objects of determinate length travel at varying but determinate speeds, and (2) absolute time, in which widely separated events can be deemed simultaneous, or not, without qualification. Einstein called these "facts" back, injecting reference frames, relativizing length and simultaneity to them, and declaring "c" a constant. His 1905 paper began with observations about how we measure distance and time, and moved from there to account for data Newton never had to confront.

Fair enough, though I might call Newton's assumptions of absolute space and time philosophical axioms rather than scientific facts. In that sense, Einstein changed our understanding/interpretation, but not the facts themselves.

There's something not just fishy but kind of lawless in such goings-on. An articulation of what underpins a constitutional democracy would help us to pin down why.


This gets tricky. Einstein did not just reconceptualize. Ideas in the air that he refuted had significant implications. One physicist for instance proposed that fast-moving objects change their physical traits. Einstein obviated the transformative forces that would have been invoked to flesh this diea out. Had he not come along, we might have a very different set of "facts" to build on.

Also, absolute time and space plus ether was not just a concept. If there was ether, a light source on earth would shoot out light at a faster speed when it was moving with the flow than against it. True, it was supposed that the difference could never be detected, so people felt free to conceptualize without fear of contradiction. However Michaelson and Morley took up the challenge head-on and found no difference. That said, their inference was questioned, and experiments were redone, e.g. in open air, in an effort to convince holdouts; some never accepted the results.

None of this looks like a simple gestalt switch involving a change in concepts. Think how differently things would shaped up -- or not -- without this series of what I would term refutations.

Also, I think implicit in what you say is the idea that it's always a matter of new displacing old. The principle of relativity, as said, was something Einstein redeployed. Also, he did not reject concepts about length and time but operationalized them by reference to what we do, an idea he got from Mach. There's conservatism here.

None of this is to deny that science is solid or that it makes progress. To the contrary. But I think the picture you have in mind could be part of what fuels culture wars, why science seems so threatening to religion, e.g., or why the Nazis called relativity theory Jewish.

Another can of worms, I think.

I don't think we disagree all that much, if at all, oo. When Newton formulated his law of gravity, he simply assumed absolute space and time. Nothing else ever occurred to him. By the time Einstein came along, that assumption had been called into question philosophically by Mach and empirically by M-M. My only point is that the concept never did have empirical validation; it was always an assumption.

You seem to have the following picture in mind:

Science learns more and more facts about reality by applying its methods to evidence as that evidence comes under its scrutiny. These methods themselves improve over time, making additional evidence available. In the course of this advance, science discards misconceptions, but what it discards was never supported by any evidence to begin with, though this becomes fully apparent to the scientific community only with hindsight.

Maybe this is not your view, but let's work with it. I would say it embodies a tenet of scientism, by which I mean science-worship akin to a religious orthodoxy.

I say this because the picture is like what we are told by an orthodoxy that looks back from its position of authority on the welter of contentions out of which it arose and, with a wave of the hand, instructs the community of faith to disregard the chaos because what really happened is that the apostolic succession, guided inerrantly but with increasing accuracy and at every stage by divine inspiration, weeded out heresies one by one to produce the true canon and a related set of lay and interpretive practices whose observance (allowing for sanctioned updates) will keep the church and its followers on the right course forever after.

Critical scholarship looks into what went on in the weeds. Some scholars do this without rejecting the final product, believers who not only acknowledge but pore over the details, though they keep their counsel and don't preach about the run-up for fear the laity has no desire or need to hear about it and that if they did it would only weaken their faith. To hold to their beliefs the scholars refine concepts like inspiration, truth and error, making them terms of art that the laity understands in simpler terms, in terms of direct witness, flashes from above, and divine direction of pens across pages of parchment. Christian scholars know, however, that the Gospels were not eye witness accounts but were penned after Paul wrote (and not by those after which they are named), and that they raise questions about corruption and translation. On the other side of the ledger, they know that heresies were rampant, requiring volumes of heresiology to wrestle down, and that by and large they arose in subjective good faith and not out or malevolence, moral blindness, or even idle error of the sort that even the ideal Christian could have called out in real time.

Now a scientistic layman would say, with a conviction very like that of an orthodox layman unexposed to what the scholar knows, that the cases are very different because there is such a thing as the deliverance of reality through scientific method but that no such thing holds good in the case of divine inspiration and its cognate concepts.

Note how well this pronouncement feeds into fundamentalist counterclaims: "You see? It comes down to a decision between faith and science, about what gets to rule our lives!" The two positions were almost meant for each other. In this way, scientism fuels rather than helps put out the flames of our present culture wars. But let's look instead at another dimension of the problem, one that goes more to the merits than to this side effect.

Just as the naive religionist ignores critical religious history, so the lay scientistic type ignores scholarship on the history and methods of science that covers the run-up to the current scientific view of the world. This scholarship -- some philosophical, some sociological, some history of science -- shows, if nothing else, that it's a distortion to say that any hypothesis that was ultimately rejected was never supported by evidence to begin with but was just lurking error waiting to be exposed by an ongoing stream of midwives and custodians of scientific truth. When you look into the weeds, what you see is more like a run-up to an orthodoxy than the scientistic pronouncement would have you think, and I think the case we've considered is a case in point, though I don't think we need to flesh it out any further.

(By the way, I'd put originalism in the same category as scientism and the naive picture of how religious orthodoxies come about.)

But to move to a positive note, if we look at our current science fully realistically, what I think we can agree on is the following, which is equally implicit in the thread (both ends of it):

There are propositions of science that are more certain than the proposition that a given constitutional case was rightly decided; and (even if we exclude from the list of scientific certainties propositions on which independent scientists are certain but that religious or business communities with a stake in the game call into question), the science list gives us a workable description of the world, whereas the landscape of legal certainties, such as it is, does not afford anywhere near as substantial a view of what the Constitution means (or comes down to at the level of cases).

Agreed, but the upshot is unclear until we come to terms with what a collective understanding of a constitution should be in the society we want for ourselves: How it should be anchored in our decisional law and statutory scheme, in our governance practices, in what public intellectuals say and do, in the day-to-day thinking of our citizens, and in our ways of deciding who occupies positions of power and authority.

In all these areas we seem to have lost our way, or rather to have ceded the course-plotting to an aggressive bunch that thinks it knows what it's doing and has a level of confidence that says more about its capacity for dogmatism and access to power than about what the subject matter allows for within a liberal society, which is not the kind of society it has in its sights.

One last word. Look again at Professor Balkin's caption. Since (as the Einstein example illustrates) scientific experiment is grist for reflection directed at finding a new equilibrium, the caption poses a false choice and so does not alone put us in the right direction. I wish Rawls were still around to say more about this. I'm sure he'd teach us all a thing or two.

You seem to have the following picture in mind:

Science learns more and more facts about reality by applying its methods to evidence as that evidence comes under its scrutiny. These methods themselves improve over time, making additional evidence available. In the course of this advance, science discards misconceptions, but what it discards was never supported by any evidence to begin with, though this becomes fully apparent to the scientific community only with hindsight.

I don't think this is always true, but I do think it was true in the particular case of Newton's assumption of absolute space and time.

Science will always have axioms underlying its theories. When it discards one previously used, the process can work much like you described. But that's not at all the ONLY way science works. Discarding an important axiom is likely a Kuhnian revolution rather than the quotidian practice of scientists.

I agree with your closing 4 paragraphs.

As far as it goes, the original post nicely explains how constitutional theory works: the best theories not only explain settled practice, they also legitimate the social and moral norms that undergird settled practice by showing how those norms have developed and relate to one another.

So far so good. But I have what academic philosophers call a metaethical question: What decision procedures (if any) determine whether underlying social and moral norms are really worth endorsing?

Let me be clear about what I'm asking: JB is right as a descriptive matter that constitutional theory explains and legitimates these norms at a first order level. But what do we say to someone who takes very different social and moral norms as starting points, thereby either rejecting the constitutional theory we've adopted or the norms that our theory seeks to situate against a background of actual constitutional practice?

What would you say to someone who shows up on a ballfield and wants to disrupt your game in order to start play over according to his preferred set of rules?

Here's another way to ask the same question: Does constitutional theory ever really change the norms that undergird and inform actual decisions, or does it only play an explanatory role (in the way that JB understands explanation).

In Rawlsian political theory, the two principles of justice play both an explanatory role - they organize and crystalize our considered specific moral intuitions - and a transformative role - by showing that some specific judgments and practices do not fit well with our general moral principles.

JB's original post suggests that the best constitutional theories certainly explain our current practice. But I'm wondering if there's also a sense in which theoretical activity in constitutional law also can have a causal impact on the norms that we reflectively endorse.

An earlier poster suggests, wrongly, that I'm trying to radically change the rules of this discussion. That's really quite silly. I'm just asking a question that is in fact implicit in some of JB's appeals to Rawlsian political theory in general and his concept of reflective equilibrium in particular.

An earlier poster suggests, wrongly, that I'm trying to radically change the rules of this discussion.

I suggested nothing of the sort.

You asked, "what do we say to someone who takes very different social and moral norms as starting points, thereby either rejecting the constitutional theory we've adopted or the norms that our theory seeks to situate against a background of actual constitutional practice?" I responded by inviting you to consider an analogous situation wherein an interloper would seek to disrupt an ongoing ballgame in order to start it over using his own set of rules. Unless you yourself have switched roles without telling us -- from being among the "we" who have adopted a constitutional theory and norms to being an interloper with very different social and moral norms as starting points, then the ballgame analogy is not about you changing the rules of the current discussion. To suggest otherwise is really quite silly.

If someone wants to suggest that we abandon the long history of constitutional and common law so that we can start over from the basis of, e.g., sharia law, then we are under no more obligation to give serious consideration to that request or demand than to that of the interloper who wants to interrupt our softball game in order to start over playing soccer.

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